Ninety days after a DEA administrative law judge postponed a hearing on rescheduling cannabis because of a motion to have the DEA removed from the entire process, the DEA has done nothing to hear the appeal.
Many had hoped that given President Donald Trump’s public statements in favor of rescheduling cannabis and legalizing adult-use in Florida, he would support the proposed rule to move marijuana from Schedule I to Schedule III. However, it reportedly is not really a drug policy priority of his right now.
The joint status report filed April 10 seemed to confirm that.
“To date, Movants’ interlocutory appeal to the Acting Administrator regarding their Motion to Reconsider remains pending with the Acting Administrator. No briefing schedule has been set,” said the report signed by both DEA attorney James Schwartz and attorney Shane Pennington, now with BlankRome, representing Village Farms International and Hemp for Victory.
Rescheduling supporters want DEA removed from process
On Jan. 13, DEA Chief Administrative Law Judge John J. Mulrooney III canceled a highly anticipated administrative hearing that was scheduled to begin Jan. 21.
After being rejected by Mulrooney before, designated participants Village Farms International and Hemp for Victory filed a renewed request to have the DEA removed as the proponent of the rule because they believe the DEA “vehemently opposes” rescheduling. The organizations, or “moveants,” said they found new evidence that DEA representatives had improperly communicated with rescheduling opponents that were allowed to be designated participants while rejecting “researchers, doctors, scientists, and the State of Colorado” as hearing witnesses.
They seek to have the Department of Justice be the proponent of the rule since it was Attorney General Merrick Garland who signed the proposed rule, not then-DEA Administrator Anne Milgram.
While sternly chastising both sides — the moveants for being “apparently eager to trade a timely disposition and recommended decision for the dubious advantage of piling on more [designated parties],” and the DEA for demonstrating a “puzzling and grotesque lack of understanding and poor judgement” — Mulrooney granted the organizations’ request for an interlocutory appeal, which moved the matter back into the DEA’s hands. He stayed the proceedings and ordered a status report in 90 days.
Since no briefing schedule has been set, during which both sides would submit briefs for the DEA to decide whether to recuse itself, the rulemaking process is delayed indefinitely.
Trump’s drug enforcement leaders oppose cannabis
Notably, at this point, the proposed rule has not been withdrawn. But given Trump’s selected law enforcement leaders, the situation doesn’t bode well for rescheduling supporters.
Both Acting DEA Administrator Derek Maltz and Attorney General Pamela Bondi have been opposed to cannabis legalization. Maltz reportedly thinks marijuana is a “gateway drug” and has linked it to school shootings. As Florida’s attorney general, Bondi challenged the language of a medical cannabis initiative in 2014.
And Trump’s current nominee to serve as DEA administrator, Terrance Cole of Virginia, who spent more than 20 years at the DEA, also opposes legalization. As of April 14, a Senate committee hearing hasn’t been scheduled to consider his nomination.
The DEA could very well sit on the process until Trump makes a decision on how to handle marijuana legalization. Any decisions the agency makes on the matter will very likely result in litigation from the losing side. If Trump decides to withdraw the rule, then legalization supporters are back to square one.
However, the U.S. Cannabis Roundtable told Green Market Report that marijuana reform remains on the president’s agenda, it’s just a question of when.
“The transition team … they brought out their whiteboard, they put their top 10 priorities together for the first 100 days, and then they made a list of the next 90, and we’re in there,” said David Culver, senior vice president of public affairs for the U.S. Cannabis Roundtable, in the article.
